日常家事代理权及其制度建构

发布时间：2018-03-01 12:41

本文关键词： 日常家事代理制度日常家事范围夫妻共同债务　出处：《中国社会科学院研究生院》2017年硕士论文　论文类型：学位论文

【摘要】：日常家事代理制度,是指配偶一方处理日常家庭事务与第三人为一定民事法律行为,双方互相为代理人,享有代理权,共同负担债务清偿责任的制度。该制度源自于古罗马的家事委任制度,后来伴随着时代的演进,世界许多国家或地区,纷纷确立了这一制度。我国自新中国建立以来,受多方面因素的影响,目前仍然未系统地设立该项法律制度。虽然我国立法有所欠缺,但学术界一直关注着日常家事代理制度,对于在今后立法中确立这一制度已达成共识。日常家事范围的认定,直接影响到配偶个人债务或共同债务的认定,日常家事范围的认定是共同债务认定规则的前提。因此,在确定日常家事范围时,一方面要参考借鉴国外的立法,同时也要符合我国当前的国情。本文从保护交易安全和理顺司法实务中共同债务认定规则的视角研究这项代理制度,全面分析了日常家事的范围,并且提出了关于确立我国日常家事范围的立法建议:日常家事是指为了给家庭成员提供基本的生存、保健和娱乐、发展需要而进行的事务。夫或妻能够有权单独处置的日常家事包括如下:(1)家庭成员在衣食住行方面的必要花销;(2)家庭成员关于医疗、医药等维持身体健康方面的必要花销;(3)家庭成员关于日常娱乐、体育锻炼方面的必要花销;(4)子女教育、个人发展及赡养老人方面的基本花销;(5)因家庭基本社交需求馈赠亲朋好友低数额财产或接受他人赠与等;(6)其他应当属于日常家事的事项。因处理下列事项时,配偶一方需征求对方的许可:(1)处置标的额较大的动产或不动产;(2)具有人身专属性质的事务;(3)非因夫妻共同生活需要的举债;(4)明显超出家庭日常开支的大额购买;(5)风险较大的家庭财产投资行为;(6)其他应当属于重大家事的事项。同时,本文针对当前我国夫妻个人或共同债务认定难的现象,提出了新的配偶债务认定规则:配偶一方以自己单独的名义或共同的名义处理日常家事所承担的债务,属于夫妻共同债务。超越日常家庭事务范围所承担的债务,属于夫或妻一方的个人债务,非举债方配偶不负担连带责任;但债权人有理由认为该意思表示为配偶双方共同做出的,应认定为共同债务,非举债方配偶不能以不知情为理由对抗善意第三人。正值民法典亲属编编纂之际,我国的立法者应该把日常家事代理制度写入亲属编中,并对该制度加以进一步的完善,使其能够真正的发挥其应有的作用。
[Abstract]:The daily family affairs agency system means that one spouse handles daily family affairs and the third party is a certain civil legal act, and both sides act as agents and enjoy the right of agency, This system originated from the family appointment system in ancient Rome. Later, with the evolution of the times, many countries or regions in the world established this system one after another. Under the influence of many factors, the legal system has not been set up systematically. Although the legislation of our country is lacking, the academic circles have been paying close attention to the daily family agency system. A consensus has been reached on the establishment of this system in future legislation. The determination of the scope of daily household matters directly affects the identification of personal debts or joint debts of spouses, and the determination of the scope of daily household matters is the premise of the rules for the determination of common debts. In determining the scope of daily household affairs, we should, on the one hand, refer to foreign legislation and at the same time conform to the current situation of our country. This paper studies this agency system from the perspective of protecting transaction security and straightening out the rules of common debt recognition in judicial practice. This paper analyzes the scope of daily family affairs and puts forward some legislative suggestions on establishing the scope of daily family affairs in our country: daily household affairs are meant to provide basic survival, health care and recreation for family members. The daily household matters for which a husband or wife has the right to deal with alone include the following: 1) the necessary expenses of family members in the area of food, clothing, housing and transportation) and (2) the medical care of family members, Essential expenses for the maintenance of physical health such as medicine (3) the necessary expenses of family members for daily recreation and physical exercise (4) the education of their children, Basic expenses for personal development and maintenance of the elderly. (5) for the basic social needs of the family, giving to friends and relatives a low amount of property or receiving gifts from others, etc.) other matters that should be part of daily family affairs. When dealing with the following matters, One spouse shall seek permission from the other party: (1) disposition of the larger amount of movable or immovable property (2) matters of a personal nature (3) debts not due to the common needs of the couple (4) large purchases that are obviously in excess of the household's daily expenses (/ / 5 / 2 / _ _ _. Other matters that should belong to major family affairs. At the same time, In view of the current phenomenon that it is difficult for husband and wife to identify their personal or common debts, this paper puts forward a new rule of spouse debt recognition: one spouse deals with the debts of daily household affairs in his or her own name or in the same name. It belongs to the joint debt of husband and wife. The debts undertaken beyond the scope of daily family affairs belong to the personal debts of one of the husband or wife, and the spouse of the non-borrower does not bear joint and several liabilities; However, the creditor has reason to believe that the expression of this intention is made jointly by the spouses and shall be regarded as a joint debt, and the spouse of the non-borrower cannot confront a bona fide third person on the grounds of ignorance... while the civil code is being compiled by relatives, The legislator of our country should write the daily family agency system into the relative book, and further improve the system so that it can really play its due role.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

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